| Kan. | Jul 15, 1883
The opinion of the court was delivered by
This was an action brought by Joseph Brown, as administrator of the estate of William Haas, deceased, against the Atchison, Topeka & Santa Fé railroad company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought under § 422 of the civil code, to recover damages for the benefit of the next of kin to the deceased.
This is the third time that the case has been to this court. [A. T. & S. F. Rld. Co. v. Brown, 26 Kan. 443" court="Kan." date_filed="1881-07-15" href="https://app.midpage.ai/document/a-t--s-f-rld-co-v-brown-7885492?utm_source=webapp" opinion_id="7885492">26 Kas. 443; same case, 6 Am. & Eng. Rld. Cases, 228; Brown v. A. T. & S. F. Rld. Co., 29 Kan. 186" court="Kan." date_filed="1883-01-15" href="https://app.midpage.ai/document/brown-v-atchison-topeka--santa-fé-railroad-7885859?utm_source=webapp" opinion_id="7885859">29 Kas. 186; same ease, 10 Am. & Eng. Rid. Cases, 739.) After the last decision by this court, the case was again tried in the district court, before the court and a jury, with the following result: After the plaintiff introduced his evidence and rested, the defendant demurred to the evidence on the ground that no cause of action had been proved; and the district court sustained the demurrer, and rendered judgment in favor of the defendant and against the plaintiff for costs; and the plaintiff again brings the case to this court for review.
Among the admitted facts, are the following: On November 17, 1879, the defendant railroad company owned and operated a car-yard immediately east of the city of Emporia, and another immediately west of that city. Haas, the deceased, had been in the employ of the railroad company for some time prior to his death, which occurred on November 17, 1879. He was first employed at the yard east of the city, and afterward, and up to the time of his death, at the
The plaintiff claims that the following, among other facts, were also proved: Haas had been in the employ of the railroad company at these two yards only about seventeen days, and had been at the new yard only about three or four days prior to his death, and had but little knowledge of the situation or the condition of the yard. The south track was in a worse condition than any of the others. The previous rains had caused water to stand in the yard in places, and some three or four days prior to the accident a ditch was dug by the employés of the railroad company across this south track, to permit the water which had accumulated and was standing on the north side of the track to pass through to the south side of the track, so that it might run off. This ditch was about the same length as the cross-ties, was about fifteen inches deep and about the same width. The aforementioned flat car was so situated on the track that the east ends of the projecting timbers were immediately over the ditch. These timbers projected over the end of the flat car from eighteen inches to two feet. Although the ditch was not covered in any manner, and the sun was shining, yet the car stood in such a position that it cast a shadow upon the ditch, and so obscured it that it could not readily or easily be seen. Haas did not have any previous knowledge of the ditch, or of the flat car, or of the projecting timbers. The ditch had no water in it at that time, but it was muddy and slippery. It is usual, when railroad companies dig ditches in their car-yards, to put in drain-boxes, or to cover them in some other proper manner. The drawhead on the flat car was a single drawhead, while that on the box car was a double drawhead; and the drawhead on the flat car was lower than that on the box car. Because of the projecting timbers and the difference in the height and shape of the drawheads, it would have been difficult, if not impossible, for Haas to have coupled the ears except by going in between
The defendant claims that, besides- the admitted facts, the following facts were proved: Although Haas had been in the employ of the railroad company at the old yard for some time previous to his employment at the new yard, yet he had been in the company’s employment at the new yard for about seventeen days prior to the accident which caused his death; and he accepted the employment at the new yard because of an increase in his wages, well knowing the situation and condition of the new yard. He had on other days, and indeed every day for seventeen days immediately prior to the said accident, coupled other cars on said south track, and must have known the exact situation and condition of the ditch and all its surroundings. The ditch was at all times in plain sight, and no one could have gone near it without seeing it. Besides, it was not so deep as claimed by the plaintiff, and was not situated immediately under the east ends of the projecting timbers, as the plaintiff claims; nor was it situated where the accident occurred; nor did the deceased step into
We think the preponderance of the evidence as introduced on the trial comes nearer proving the facts as claimed by the defendant than as claimed by the plaintiff; and if the court below had been trying the case upon the evidence, without the jury, its decision upon the evidence would be correct. Upon a preponderance of the evidence, we think the findings and judgment in the present case should be in favor of the defendant and against the plaintiff. But the case was not submitted to the court below upon a preponderance of the evidence. The question as presented to that court was simply whether the plaintiff had introduced some evidence to prove every material fact of his case, or had utterly failed to prove his case. Now while we think the preponderance of the evidence was in favor of the defendant and against the
Ordinarily, a railroad company is bound to exercise reasonable care and diligence in furnishing its employés with a reasonably safe place at which to perform their labors, and with reasonably safe implements, tools or machinery with which to work; and if the railroad company fails in this, it is negligent, and for any injuries resulting from such negligence it is liable. It is probable in the present case, that with the amount of business which the railroad company had on hand, it was necessary to commence using the new yard before it was entirely completed or finished; and therefore that it would be excusable for any defects in the new yard, provided its employés had full knowledge of such defects and were warned against them. And under such circumstances the railroad company would not be negligent, and the employés continuing in the service of the company would, as in other cases, take all the risks and hazards connected with their employment; and then if they should go into danger with their eyes open and knowing the risks, it would be their own fault and not that of the railroad company if they received injuries. Under such circumstances they would themselves be guilty of negligence, and could not recover from the railroad company.
But in the present case, we cannot say as a matter of law that Haas, the deceased, had any previous knowledge of the
With these views, it follows that the court below erred in sustaining the demurrer to the evidence. If the evidence had been submitted to the jury, the jury should have found just as the court did; but the jury would have made their finding upon the preponderance of the evidence. But the court, upon a demurrer to the evidence, does not decide the case upon a bare preponderance of the evidence. It must be able to say before it sustains the demurrer that, admitting all the evidence to be true which the plaintiff has introduced, and that none of the evidence conflicting therewith is true, the plaintiff has utterly failed to make out his case. If the court below had overruled the demurrer and allowed the jury to decide the case, and if the jury had then decided it in favor of the plaintiff and against the defendant, and the court had then granted a new trial upon the ground that the verdict was not sustained by sufficient evidence, such a de
We think the demurrer to the evidence was erroneously sustained in the present case. The present case, however, is a close one, and different minds might fairly come to different conclusions; yet we think there was sufficient evidence introduced on the trial by the plaintiff from which, if it had been wholly uncontradicted, the jury might have inferred negligence on the part of the defendant, and no contributory negligence on the part of the plaintiff, and might therefore have inferred that the plaintiff' was entitled to recover.